Citation NR: 9715793
Decision Date: 05/06/97 Archive Date: 05/16/97
DOCKET NO. 95-29 099 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for residuals of a
fracture to the left hand.
3. Entitlement to service connection for low back disorder.
4. Entitlement to service connection for residuals of cat
fever.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Melissa Brown, Associate Counsel
INTRODUCTION
The veteran had active service from March 1944 to March 1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a January 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which denied service connection for the
issues listed on the previous page. The veteran appealed
that decision which was referred to the Board for review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that his hearing was damaged while
serving aboard a submarine and being exposed to depth
charges. He further contends that he fractured his left hand
and finger while on active duty which has resulted in
arthritis and that he injured his low back which eventually
necessitated surgery years later. The veteran also maintains
that he occasionally suffers fevers as a result of the cat
fever he contracted while in the service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met his
initial burden of submitting evidence to justify a belief by
a fair and impartial individual that his claims for service
connection for bilateral hearing loss, residuals of a
fracture to the left hand, low back disorder, and residuals
of cat fever are well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the issue on appeal has been obtained by the
RO.
2. The claims for service connection for bilateral hearing
loss, residuals of a fracture to the left hand, low back
disorder, and residuals of cat fever are not plausible.
CONCLUSIONS OF LAW
1. The claim for service connection for bilateral hearing
loss is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 5107
(West 1991); 38 C.F.R. § 3.303 (1996).
2. The claim for service connection for residuals of a
fracture to the left hand is not well grounded. 38 U.S.C.A.
§§ 1101, 1110, 5107; 38 C.F.R. § 3.303.
3. The claim for service connection for low back disorder is
not well grounded. 38 U.S.C.A. §§ 1101, 1110, 5107;
38 C.F.R. § 3.303.
4. The claim for service connection for residuals of cat
fever is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 5107;
38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The primary question is whether the veteran has presented
well grounded claims. It is the veteran who has “the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded.” 38 U.S.C.A. § 5107 (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990); Grivois v. Brown, 6
Vet.App. 136, 140 (1994). For the reasons set forth below,
the Board finds that the veteran has not met his burden of
submitting evidence to support a belief by a reasonable
individual that his claims for service connection are well
grounded.
The veteran maintains that he suffered hearing loss while
serving aboard a submarine in service, that he fractured his
left hand or a finger on that hand in 1945, that he suffered
a back muscle strain at Farragut Idaho Camp Infirmary in 1944
or otherwise injured his low back in 1945, and that he
suffers recurrent fevers on occasion as a result of
contracting cat fever in 1944 while at Farragut Idaho.
Service medical records are devoid of any mention of
complaints of hearing loss, a fracture to the veteran’s left
hand or a finger, and of complaints of a back problem. A
medical entry dated in May 1944 states that the veteran was
on leave and became ill with a disease diagnosed as Cat
Fever. He was found fit for duty upon examination when he
returned to the military base after his period of leave. The
report of the veteran’s separation examination dated in March
1946 notes a normal spine and extremities and normal hearing
shown by the whispered voice and spoken voice tests at
fifteen feet. The only abnormalities indicated on the
examination report were a deviated right septum and three
missing teeth.
No post service medical evidence of a back problem, residuals
of a fractured finger or hand, or recurrent fevers has been
submitted for consideration. VA treatment records from 1984
through 1991 show that a diagnosis of high frequency
sensorineural hearing loss in both ears was made in 1984. No
etiology for this hearing loss is noted in the medical
records.
Service connection may be granted for a currently diagnosed
disability which is shown to have been incurred in or
aggravated by active service. 38 U.S.C.A.
§ 1110. In determining whether service connection is
warranted for a disability, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied. 38 U.S.C.A. § 5107;
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
"A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service." Watson v. Brown,
4 Vet.App. 309, 314 (1993). A service connection claim must
be accompanied by evidence which establishes that the
claimant currently has the claimed disability. Rabideau v.
Derwinski, 2 Vet.App. 141 (1992).
A well grounded claim requires more than a mere assertion;
the claimant must submit supporting evidence. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992). While the veteran is
certainly capable of providing evidence of symptomatology, a
layperson is generally not capable of opining on matters
requiring medical knowledge, such as the degree of disability
produced by the symptoms or the condition causing the
symptoms. See Robinette v. Brown, 8 Vet.App. 69, 74 (1995);
Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992); see also Harvey v.
Brown, 6 Vet.App. 390, 393-94 (1994).
Here, the veteran has not submitted any medical opinion or
other medical evidence which supports his claims. The
evidence now of record fails to show that the veteran had a
fracture to his left hand or finger in service, or has
residuals of any such fracture; that he either during service
or currently has a back problem; or that he experiences
recurrent fevers or any other residual of cat fever.
Moreover, there is no evidence showing that the veteran had a
hearing loss in service and no competent medical evidence
relating the 1984 diagnosis of hearing loss to service has
been submitted. For these reasons, these claims may not be
considered well grounded. 38 U.S.C.A. §§ 1101, 1110, 5107;
38 C.F.R. § 3.303. Since the claims are not well grounded,
they must, accordingly, be denied. Grottveit v. Brown, 5
Vet.App. 91 (1993); Edenfield v. Brown, 8 Vet.App. 384
(1995).
Although the Board has considered and disposed of the
veteran’s claims for service connection on a ground different
from that of the RO, the veteran has not been prejudiced by
the Board’s decision. This is because, in assuming that such
claims for service connection were well grounded, the RO
accorded the veteran greater consideration than these claims
in fact warranted under the circumstances. Bernard v. Brown,
4 Vet.App. 384, 392-94 (1993). To remand this case to the RO
for consideration of the issue of whether these claims are
well grounded would be pointless and, in light of the law
cited supra, would not result in a determination favorable to
the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747
(1992). The Board also views its discussion in this case as
sufficient to inform the veteran of the elements necessary to
complete his application for claims for service connection.
See Robinette.
ORDER
Service connection for bilateral hearing loss, residuals of a
fracture to the left hand, low back disorder, and residuals
of cat fever are denied.
HILARY L. GOODMAN
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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